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ELRCAllowedNotice of Motion dated 8th September, 2020 (ELRC Miscellaneous)

Godwin Boy Okumu v Coalition Security Services Limited [2021] KEELRC 1421 (KLR)

Employment and Labour Relations Court
31 May 2021
768 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court excused a delayed appeal filing caused by COVID-19 court disruptions, giving the appellant 21 days to file.

What this practically means

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Executive summary

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The applicant, through his advocate Willis Wetaba Nanjendo, filed a Notice of Motion dated 8th September 2020 seeking leave to file a Memorandum of Appeal out of time against the judgment of L.T Lewa delivered on 22nd May 2020 in Chief Magistrates Court Milimani Commercial Court CMEL No.653 of 2019, which had been decided in favour of the respondent. The applicant explained that the appeal was lodged through the court's designated email address for filings during the COVID-19 pandemic; fees were assessed and paid, but the registry failed to respond or allocate a number despite repeated follow-ups, and by the time the lapse was discovered, the 30-day period had expired. The application was brought under Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, section 79 of the Civil Procedure Act and Article 59 of the Constitution. The court held that in the absence of regulatory rules governing lodging of appeals under the ELRC Procedure Rules, section 79G of the Civil Procedure Act applies, and that reliance on Article 59 of the Constitution was irrelevant. Finding that the 30-day period fell within the COVID-19 pandemic period of partial court closures and electronic communication, the court held the delay was not inordinate. It further held that merits could not be determined at that stage but the intended appeal was not frivolous on its face. The application was allowed, with the applicant granted 21 days to file the appeal out of time, and the applicant ordered to bear own costs. Delivered at Nairobi on 31st May 2021 by M. Mbaru, J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave to file the Memorandum of Appeal out of time
  2. 2.Whether the delay in filing the appeal was inordinate
  3. 3.Whether the intended appeal is frivolous

Key legal issues

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01

Whether the delay in lodging the appeal was excusable

Holding

The delay was not inordinate, as the 30-day filing period fell within the COVID-19 pandemic period of partial court closure and electronic communications

Reasoning

The court noted judgment was delivered on 22nd May 2020 and the Memorandum of Appeal was lodged on 22nd June 2020, within the statutory 30-day period, but the appeal stalled in the registry due to email communication difficulties and fee assessment delays during the pandemic. Given the COVID-19 operating restrictions, the resulting delay in the filing process was excusable and the applicant demonstrated good and sufficient cause under section 79G of the Civil Procedure Act.

p. 2
02

Whether the intended appeal is frivolous

Holding

The appeal is not frivolous on its face, and the merits are left to be determined once the appeal is filed

Reasoning

The court held that chances of success cannot be decided at the leave stage. From the attached memorandum of appeal, the intended appeal was not frivolous on its face, and the applicant would have an opportunity to argue the merits while the respondent would have a chance to respond once the appeal is filed.

p. 2
03

Applicable legal framework for extension of time in ELRC appeals

Holding

In the absence of regulatory rules under the ELRC Procedure Rules on lodging appeals, section 79G of the Civil Procedure Act applies; reliance on Article 59 of the Constitution is irrelevant

Reasoning

Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016 permits a party to file an appeal but does not provide a regulatory framework for the lodging process. Accordingly, section 79G of the Civil Procedure Act, governing appeals from subordinate courts to the High Court, applies. The invocation of Article 59 of the Constitution was irrelevant to the application.

p. 1

Legal principles established

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  • Section 79G of the Civil Procedure Act applies to appeals from subordinate courts to the High Court and an appeal may be admitted out of time on good and sufficient cause; Article 59 of the Constitution is irrelevant to such applications
  • The merits of an intended appeal are not determined on an extension-of-time application; the court need only be satisfied the appeal is not frivolous on its face

Court orders

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  1. 1.Application dated 8th September, 2020 allowed
  2. 2.Applicant granted leave of 21 days to file appeal out of time with regard to Chief Magistrates Court Milimani Commercial Court CMEL No.653 of 2019
  3. 3.Applicant to bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrates Court Milimani Commercial Court
CMEL No.653 of 2019
Jurisdiction invoked
Article 59 of the Constitution (held irrelevant) and Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016 read with section 79G of the Civil Procedure Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

No doubt, the 30 days fell in the Covid 19 pandemic period necessitating partial closure of courts and communications electronically and therefore the delay in filing the intended appeal was not inordinate.
p. 2Inordinate delay - COVID-19 pandemic circumstances
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
p. 1Section 79G Civil Procedure Act - good and sufficient cause
Accordingly, application dated 8th September, 2020 is hereby allowed and the applicant granted leave of 21 days to file appeal out of time with regard to Chief Magistrates Court Milimani Commercial Court CMEL No.653 of 2019. Applicant shall bear own cots.
p. 2Final orders - leave granted to appeal out of time

Issues in the judgment

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minor

Judgment mislabels section 79G as 'Section 75G of the Civil Procedure Act' in the introductory sentence before correctly citing it as 79G

minor

Judgment alternates between citing 'Employment and Labour Relations Court (Procedure) Rules, 2014' and '2016' for the same Rule 8

minor

Typographical error in costs order ('cots' instead of 'costs')

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Godwin Boy Okumu v Coalition Security Services Limited [2021] KEELRC 1421 (KLR)", Case Analysis (2021). Notice of Motion dated 8th September, 2020 (ELRC Miscellaneous). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1421/eng@2021-05-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.